Hays v. Lafayette County

91 So. 196, 128 Miss. 543

• Court: Mississippi Supreme Court
• Decided: March 15, 1922
• Docket: No. 22301
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court.

, This is an appeal from a judgment of the court below affirming an order of the board-of supervisors of Lafayette county that certain designated terlitory be permitted to come within the provisions of chapter 277, Laws of 1920, and appointing road commissioners therefor. On the 4th day of September, 1919, the board of supervisors of Lafayette county passed an order adjudging that a petition filed with it for the issuance of the bonds of the territory designated therein for road purposes under the provisions of chapter 176, Laws of 1914, “contains more than twenty per cent, of the qualified electors of said proposed road district” and ordered that notice be given of the filing of the petition and of the intention of the board to issue the bonds therein prayed for.

At the October, 1919, term, no objection to the issuance of the bonds having been made, the board entered an order;

“That said lands so described hereinbefore be, and the same is hereby, created and organized into a separate road district under and by virtue of chapter 176, Laws of 1914 of Mississippi, under the style and name of ‘Beat Three road district of Lafayette county, Miss.,’ as a body politic and corporate, and the bonds of said district are to be issued as herein after ordered.”

Afterwards an election was held in order to determine whether or not the bonds of the district should be issued, but, because of a defect therein, not material here to be set forth, no bonds were issued thereunder. At the May term, 1921, a petition describing the same territory as that described in the petition hereinbefore referred to was filed with the board of supervisors praying that the territory therein described be permitted to come under the provisions of chapter 176, Laws of 1914, as amended by chapter 277, Laws of 1920, and that bonds of the district be issued and sold for road purposes. The order made by the board on this petition recites that:

“The board having found that said petition is signed by more than twenty per cent, of the qualified electors of the territory described herein, and that said territory has been heretofore organized into a separate district by virtue of the law therein referred to, under the name of Beat Three road district of Lafayette county, Miss., and that said organization has been heretofore perfected and completed, except that a question having arisen as to the amount of the bonds to be issued, and sold for the purpose prayed for in the petition:

“Now, therefore, be it resolved by the board of supervisors of Lafayette county, Miss. :• That the prayer of the above petition be, and the same is hereby, granted, and the said territory is hereby authorized to come under the provisions of the said chapter 277 of the Laws of 1920, and such creation and organization of said territory is hereby ratified, confirmed, and perfected, and it is the intention of this board to issue and sell the bonds of said district in a maximum amount of not exceeding sixty thousand dollars for the purpose of constructing and maintaining one or more highways in said road district for the convenience of the traveling public, and the said intention to issue and sell bonds is hereby ordered submitted to the qualified electors of said district for ratification or rejection at an election hereby ordered held in said district on the 4th day of June, 1921, and the election commissioners shall give the proper notice, and the election shall be held as authorized by law.”

The notice published by the election commissioners for the holding of this election was as follows: “Special Election in the Beat Three road district of Lafayette county, Mississippi, Saturday, June 4, 1921. (College Hill Precinct. ) (Slates Precinct.) To submit to the qualified electors of said district the proposal of the board of supervisors of said county to issue and sell the bonds of said district in the maximum sum of not exceeding sixty thousand dollars for the purpose of constructing and maintaining one or more highways in said road district.

“For the issuance of the bonds-.

“Against the issuance of the bonds-

It is stated in the brief of counsel for the appellants, but does not appear from the record, that the territory embraced within the proposed road district is in, but not coextensive with, supervisors’ district No. 3.

When the report of the commissioners came on to be heard by the board in June, 1921, an order was entered reciting :

That a majority of the qualified electors of the district had voted in favor of the issuance of the bonds in the maximum sum of sixty thousand dollars, and “that the above-mentioned Beat Three road district be permitted to come under the provisions of law as prayed for in the petition filed in said cause, and that M. Price, J. J. Dillard, and D. W. Gallegly be, and they are hereby, appointed road commissioners for said district for a term of four years as authorized by chapter 176, LaAVS of 1914,'and amendments thereto.”

Before this last order was entered the appellees filed Avritten objections to the issuance of the bonds and to the validity of the orders entered and to be entered. When the first petition herein referred to was filed with the board of supervisors, there was pending with it another petition praying that a large territory, included within which is that described in the petition on which the first order herein referred to was made, be permitted to come under the provisions of chapter 176, LaAVs of 1914.

As we understand the brief of counsel for the appellant, the reasons therein assigned for reversing the judgment of the court below are: (a) The board of supervisors Avas Avith-out jurisdiction to enter the order at its September, 1919, term creating “Beat Three road district of Lafayette county,” for the reason that another and prior petition for the creation of a road district which would include the lands embraced Avithin Beat Three road district Avas then-pending and undisposed of; (b) the electors must all sign the same petition, or, if they do not all sign the same petition, those signed must be identical, and the fact that the names of the electors here appear on sheets of paper differing in quality from that on which the petition is written indicates that the sheets containing them Avere pinned to the petition after the names were placed thereon, and may have been detached from other and different petitions, and to hold that they thereby became a part of the petition would open the door to fraud and nullify the requirements of the statute; (c) the order creating the road district recites that the petition praying therefor “contains more than twenty per cent, of the qualified electors,” and not that it was signed by more than tAventy per cent, thereof, as the statute requires; (d) the notice given the electors of the intention of the board of supervisors to issue the bonds of Beat Three road district does not comply Avitli the requirement of the statute relative thereto in that it does not describe the territory composing the district.

1. Where tAvo or more petitions for the creation of road districts, each including a part of the same territory, are pending before a board of supervisors at the same time, the board may select the one on which it will act first. Bookout v. Board of Supervisors, 103 Miss. 413, 60 So. 568.

2. It is immaterial Avhether the names of the qualified electors to a petition for the establishing of a road district appear on the same sheet of paper on which the petition is written, or on separate sheets attached thereto, provided they were placed on the separate sheets after they were, or for the purpose of being, attached to the petition; and the facts relative thereto are for the determination of the board of supervisors.

3. Section 2, chapter 176, Laws of 1914, under which the district here in question was created, authorizes a board of supervisors to create a road district upon the presentation to it “of a petition containing the names of twenty per cent, of the qualified electors,” etc.; and the order entered by the board of supervisors of Lafayette county on the petition here in question recites that it “contains more than twenty per cent, of the qualified electors,” etc. Conceding for the purpose of the argument, and as contended by counsel for the appellant, that the requirement of the statute that the petition shall contain the names of more than twenty per cent, of the qualified electors means that it shall contain the signatures of more than twenty per cent, of such electors, then we must also hold that, when the board of supervisors used the words of the statute, they meant to give to them the statutory meaning. In other words, if the words “containing the names” in the statute mean “signed by,” certainly the words “contains the names” in the order of the board of supervisors based on the statute must mean the same thing. Beat Three road district was therefore regularly created by the order of the board of supervisors entered at its October term, 1919.

4. Beat Three road district being a regularly created district, the reference to it by name in the notice to the qualified electors thereof of the election to be held for the issuance of its bonds was a sufficient notice to the electors of the territory to be affected by the proposed bond issue.

Affirmed.

On Suggestion of Error.

Anderson, J.

The appellants suggest that the court erred in the-opinion handed down in this case in holding that “Beat Three road district” was legally organized. It is contended that the resolutions of the board of supervisors organizing the district are void,, because the notice published by the board of its purpose to issue the bonds provided for by section 2, chapter 145, Laws of 1912, failed to state the purpose for which the bonds were to be issued, and the amount of bonds the board proposed to issue. The notice in question is in this language:

“Notice.

“The State of Mississippi, County of Lafayette.

“Whereas, a petition signed by more than twenty per cent, of the qualified electors of the proposed Beat Three road district has been filed with the board of supervisors, asking that the following described lands in said county and state be organized into a separate road district, and permitted to come under the provisions of chapter 176 of the laws of Mississippi of 1914, to wit:

“Sections 19, 20, 29, 30, 31, and 32, township 6, range 3 west; sections 5, 6, 7, 8,17,18,19, 30, and west half of section 31, toAvnship 7, range 3 west; sections 25, 36, and the east half of section 35, township 6, range 4 west; sections 1, 2, 3, 7, 9,10,11,12,13,14,15,16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, and south half of section 8, all in township 7, range 4 west; sections 1,2, 3,10, 11, 16, and northeast quarter of section 12, township 8, range 4 west; also sections 13, 24, 25, 26, 27, 34, 35, and 36, in township 7, range 5 west. All the above lands lying and being in Lafayette county, Mississippi.

“Now, therefore, notice is hereby given that the board of supervisors, at its regular meeting in October, 1919, will issue the bonds of said district, as prayed for in said petition, unless a petition objecting to the issuance of the bonds and the organization of the said district, signed by twenty per cent, of the qualified electors of the above described territory, is filed with said board.”

The appellants argue that Rhodes v. Robinson, 109 Miss. 114, 67 So. 899, is decisive of this question in their favor. The notice involved in that case was in this language:

“Notice of Bond Issue.

“To the Qualified Electors of Beat No. 4:

“Notice is hereby given that the board of supervisors of said Rankin county proposes, at its next regular session, beginning on the first Monday in November, 1913, to issue the six per cent, bonds of said Beat No. 4, the said bonds to mature in twenty-five years and payable as follows: Five five hundred dollars bonds on the 15th day of November, 1923, and five five hundred dollar bonds on the 15th of November of each successive year, until seventy of said bonds are paid, and ten of said bonds on November 15, 1938.”

The court held that the notice in that case was void, because it failed to indicate to the electors the purpose for which the bonds were to be issued, what kind of bonds were intended, whether school bonds, road bonds, or drainage bonds, and the court said that the notice was defective also because it failed to state under what law the board proposed to issue the bonds.

It will be noted that by the notice in question in the present case the electors of the district were informed that it was sought to organize the district and issue bonds under chapter 176, Laws of 1914. This constituted a very material difference between the notice here and the notice in the Rhodes Case. It is true that this notice did not inform the electors of the purpose for which the bonds were to be isued, nor the amount proposed to be issued. But with such a notice, specifying the statute under which it was proposed to issue the bonds, any qualified elector in the district, by consulting the statute therein referred to, would have unerringly ascertained the purpose for which the bonds were sought to be issued, and furthermore would have found by consulting the statuté (section 3, chapter 176, Laws of 1914) that the maximum amount of bonds which could be issued under the statute was ten per cent, of the assessed property of the. district, and that the exact amount of bonds to be issued, as provided in said section, could not be fixed until after the election had either carried, or an election became unnecessary under the statute, and that then the statute authorized that to be done alone by the road commissioners to be appointed, subject to the approval of the board of supervisors. In other words, any elector, by pursuing the inquiry suggested by the published notice, would have ascertained, by any sort of diligence, the limit of the amount of bonds which might be issued, the purpose for which they could be issued, and that the exact amount to be issued could be fixed alone by the road commissioners, with the approval of the board, after the election, or after an election became unnecessary. The notice of the proposal to issue bonds could not, under the statute, have informed the electors of the amount of bonds which was proposed to be issued, because that fact could be determined alone after the election, or after it became unnecessary to have an election.

We think the suggestion of error is without merit.

Overruled.